Archive for May, 2012

DEP Fails Clean Water Metric – EPA Battle Brewing

May 27th, 2012 No comments

EPA Oversight Likely To Block NJ’s Attempt To Rollback Stream Buffers

EPA data on NJ TMDL cleanup plans show huge performance drop during Christie Administration

[Update below]

Two brief but important things for clean water and land use regulation in NJ.

I)   Clean Water Act TMDL cleanup program floundering

First, I had hoped that Governor Christie’s veto of legislation – that would have required that DEP develop a federal Clean Water Act “Total Maximum Daily Load” (TMDL)  cleanup plan for Barnegat Bay – would have prompted a firestorm of critical media inquiries and legislative oversight  of the DEP’s implementation of the federally delegated Clean Water Act TMDL program.

I figured oversight was warranted not only as a result of Christie’s Veto, but due to DEP’s own Reports and the Asbury Park Press’ series about poor and declining water quality in NJ.

Of course, oversight also is justified by DEP Commissioner Bob Martin’s pledge to develop and be held accountable to performance metrics.

But none of that happened.

So, I figured I’d do it myself.

A simple Google produces the data – but you have to know where to look – DEP recently revised the webpage and  no longer makes access to the TMDL program user friendly. With that kind of lousy performance, I can understand why.

[Note: and if you miraculously managed to follow the links and actually found any TMDL, you can find this revealing statement of concession, or “substantial relief” provided by DEP (on page 42):

Completion of the TMDL study allows the Department to substitute a TMDL-based water quality based effluent limit in place of the [stricter] 0.1 mg/L end-of-pipe criterion that would be required for a discharge to an impaired water, absent a TMDL. This was the limit initially applied to the Allamuchy Township, Pequest Fish Hatchery and Warren County MTJA-Oxford facilities and which was adjudicated.  

The Department is mindful of the need to align requirements for treatment with an associated environmental benefit. To that end, this TMDL provides substantial relief from the initially  imposed limit and incorporates additional seasonal relief in recognition of the higher 7Q10 flows that occur in winter months. …

If, despite the significant relief already provided, the reductions required are believed to result in substantial and widespread social and economic impact, the Department provides a mechanism for the regulated entity to pursue relief from the required reduction in the form of a variance, as set forth in the SWQS at N.J.A.C. 7:9B­ 1.8 and 1.9 (see also N.J.A.C. 7:14A-l1.8).

So, not only is DEP doing far too few TMDL’s, the ones they are doing are designed to provide relief from stricter pollution limits – in other words, DEP is using the TMDL process to gut standards.  Full disclosure: I worked on the 0.1 mg/L phosphorus effluent standard while at DEP end note].

As the above bar chart reveals, the Christie DEP clean water performance  is abysmal, as measured by something DEP has complete control over – production and implementation of TMDL cleanup plans for NJ’s severely polluted waterways.

But, it looks like DEP is following the Governor’s Veto in administering the TMDL program.

II)  Any Rollbacks in C1 Stream Buffers Will Trigger EPA Oversight

Second, changing gears.

As recommended by the Christie DEP Transition Report and the “regulatory relief” provisions of Executive Order #2, DEP will soon propose new rules that would rollback the controversial “Category One” (C1) 300 foot stream buffers.

That rollback effort likely will be blocked by USEPA.

That’s because the NJ State DEP 300 foot Category One (C1) stream buffers are now federally enforceable in NJ.

To demonstrate compliance “waste load allocations” under the TMDL, as DEP noted in the TMDL:

As part of the requirements under the municipal storm water permitting program, municipalities are required to adopt and implement municipal stonnwater management plans and stonnwater control ordinances consistent with the requirements of the stonnwater management rules. As such, in addition to changes in the design of projects regulated through the RSIS and DLUR, municipalities have been updating their regulatory requirements to provide the additional protections in the Stormwater Management Rules. 

Thus, federal enforcement is the result of EPA’s recognition of buffers as a non-point source pollution control “Best Management Practice” (BMP) in the “Waste Load Allocation (WLA) of the “TMDL” program under Section 303 of the Clean Water Act.

Now there’s a mouthful! (see glossary of TMDL terms).

EPA has memorialized this policy in EPA’s approval of DEP’s proposed TMDL’s, where EPA wrote:

Tier B Municipalities shall enforce stormwater control ordinance(s) when approved in accordance with N.J.A.C. 7:8-4. Within 24 months from the effective date of permit authorization Tier B Municipalities shall:

  • Ensure adequate long-term operation and maintenance of BMPs on property not owned or operated by the municipality;
  • Enforce, through the stormwater control ordinance(s) or a separate ordinance compliance with the standards set forth in Attachment A of the permit to control passage of solid and floatable materials through storm drain inlets for storm drain inlets not installed by the Tier B Municipality.

Pursuant to the New Jersey Stormwater Management Rules, there is a 300-foot special water resource protection area (S WRP A) around Category One (C 1) waterbodies and their intermittent and perennial tributaries, within the HUC 14 subwatershed. C1waters receive the highest form ofwater quality protection in the state, which prohibits any measurable deterioration in the existing water quality. 

In addition to EPA’s formal recognition of the NJ stream buffers in the TMDL program, EPA has additional federal Clean Water Act based review and approval powers over NJ DEP C1 buffers.

NJ DEP’s C1 buffers are a water quality BMP codified in the NJ Stormwater Management Regulations. The federal EPA hook is created by the fact that compliance with the Stormwater Management Regulations is required under NJ DEP’s rules implementing the EPA delegated Municipal Stormwater Permit program under the Clean Water Act.

NJ C1 waterway designations are codified in the EPA reviewed and approved Surface Water Quality Standards. NJ DEP’s C1 buffers are also an “anti-degradation implementation procedure” under the EPA approved NJ Surface Water Quality Standards.

Therefore, EPA has approved NJ’s stream buffers in the Municipal Stormwater Permit program and the Surface Water Quality Standards programs. Any substantive change to the buffers would trigger EPA review and approval.

In the event that DEP proposes any rollback of the C1 buffers, we will be seeking EPA intervention to block that move under the federal Clean Water Act.

We will keep you posted.

Poor Performance at DEP while Commissioner Martin does photo ops picking up garbage

[Update: in addition to using the TMDL process to address administrative challenges to permits (an absurd priority, which is supposed to be driven by water quality concerns, not litigation) and to undermine and weaken stricter effluent standards, the TMDL process itself has some pretty perverse stuff.

First of all, wetlands and forests are considered “pollution sources”.

But, that’s not all!. This is my favorite perversity: DEP considers development of farmland as an means to improve water quality! Yup! See page 45:

Comment 11: The Andover Planned Unit Development (PUD) will change the land use from agriculture to residential. Will this land use change be taken into account as the NPS reductions required to be accomplished ‘by Andover Township (Tier A Municipality under NJDEP stonnwater regulations) and/or Andover Borough (Tier B Municipality) are calculated? Will the Andover PUD’s stonnwater best management practices (BMPs) that are already a feature of the project be given proper NPS reduction credit? Devise a method of crediting for BMPs that already reduce their runoff load instead of asking them to further reduce their loads when other nonpoint source dischargers with the same land use have not reduced their loads at all. (4)

Response to Comment 11: As stated in the TMDL, the contribution of TP associated with residential development is less than that associated with agricultural land use. Therefore, it is reasonable to expect that a reduction in land use load will result with this conversion. 

Second, and worse, as noted above, DEP used the TMDL to provide “significant relief”.

Now DEP did not apply this relief just anywhere, like in a heavily polluted urban river.

DEP provided relief from pollution controls to sewage treatment plants that discharge into the most environmentally sensitive trout streams and rivers in NJ! The Pequest in Warren County:

(source: NJDEP)


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The Other Oil Man in the White House

May 26th, 2012 No comments

White House energy webpage 


[Update: Five days after I wrote this post – which basically suggested that Obama was worse than oil man Bush – the Associated released this analysis which shows that EPA enforcement under Obama is WEAKER than under Bush:  Oil stats belie tough enforcement talk  –

WASHINGTON (AP) — In the three years since President Barack Obama took office, Republicans have made the Environmental Protection Agency a lightning rod for complaints that his administration has been too tough on oil and gas producers.

But an Associated Press analysis of enforcement data over the past decade finds that’s not the case. In fact, the EPA went after producers more often in the years of Republican President George W. Bush, a former Texas oilman, than under Obama.

Also, the agency’s enforcement actions have declined overall since 2002 and reached their lowest point last year, the review found.

just sayin’. ~~~ end update]

I guess the White House’s own imagery says all that needs to be said. A picture really is worth a thousand words. So I grabbed a screen shot, because for sure they will realize how damning it is and take it down.

But then again, maybe they won’t.

As I wrote, Obama is proud of his record oil and gas production:

4. National Story: Obama Collapse

My goodness, forget about Bill McKibben’s misguided praise of Obama’s Keystone XL.

The man has totally collapsed on energy and global warming policy – far worse than Texas oil man Bush (as we’ve written here for some time).

Obama State of the Union address BRAGGED about expanding oil and gas production and yesterday Obama announced 21 million acres of Gulf of Mexico oil and gas leases. From the Obama SOTU:

“Nowhere is the promise of innovation greater than in American-made energy. Over the last three years, we’ve opened millions of new acres for oil and gas exploration, and tonight, I’m directing my Administration to open more than 75 percent of our potential offshore oil and gas resources. Right now, American oil production is the highest that its been in eight years. That’s right, eight years. Not only that, last year, we relied less on foreign oil than in any of the past sixteen years.”

Where is the ENGO outrage over that?

[Note: and I wrote that on Jan. 27, 2012, almost 2 months BEFORE Obama did THIS:  Keystone XL pipeline: Obama to fast-track southern portion of project – As criticism from Republicans mounts, Obama announces expedition of 485-mile pipeline from Oklahoma to Gulf Coast – end Note].

The New York Times story explains the latest:

(source: NY Times)

New and Frozen Frontier Awaits Offshore Oil Drilling


“We never would have expected a Democratic president — let alone one seeking to be ‘transformative’ — to open up the Arctic Ocean for drilling,” said Michael Brune, executive director of the Sierra Club. ….

Environmental groups, though opposed, recognized the president’s commitment to Shell’s plan, and never formed a broad alliance with North Slope residents, many of whom resented intervention by organizations based mostly outside of Alaska.

National environmental groups focused instead on more promising targets, like defeating the Keystone XL pipeline from Canada and retiring coal-fired power plants.


(And so, Bill McKibben: if the Keystone XL Pipeline is “game over for the planet”, what is Artic oil?  “Game, set, and match”? Or The Fat Lady singing?

Take that to the streets!

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The Enforcement Version of the DEP Waiver Rule

May 25th, 2012 No comments

I need to expand upon one point in my brief note yesterday. Consider  this an alert.

The Assembly quietly just passed what amounts to the enforcement version of the controversial DEP waiver rule (see A2584).

Recall that the main problems with the waiver rule were that its broad scope, vague standards, and lack of safeguards would provide discretion to allow the DEP Commissioner to waive many current regulatory requirements that safeguard public health and the environment.

The enforcement bill approved by the Assembly is actually broader in scope than the waiver rule and it too includes similarly vague standards. Here’s why.

The enforcement bill applies to all DEP enforcement regulations, including federally delegated programs, legislatively mandated standards, numeric and or narrative standards, and public health and safety protections, all of which are excluded under the waiver rule.

The waiver rule applies only to new future permit applications, so is limited. But the enforcement bill would apply to thousands of existing permits, which is far more significant in scope and a far greater risk to the environment than the waiver rule. And we’re talking about violations of those permits, so some negative environmental impact or harm is likely.

The bill would vastly expand the scope of the current definition of “minor violation” under the “Grace Period” law.

Under the Whitman Administration’s Grace Period” law, DEP was prohibited from issuing enforcement fines and sanctions for “minor violations”.

Back in 1995, I worked closely on that legislation. The opposition we were able to generate   basically forced Governor Whitman to issue a “Conditional Veto”. I worked with Whitman’s Counsel to develop protective CV standards in the broad bill passed by the Legislature (I still fondly recall that meeting Curtis Fisher and I had with the Front Office. I took a hard line, would not compromise, was almost thrown out of the meeting, yet I won the concessions!).

The current Burzichelli enforcement bill would vastly expand the scope of the Whitman law. The bill would do that in two ways:

first, by allowing just one of the protective criteria to be met (see boldfaced language in section 5.b. below).

Previously, in order to be considered a “minor violation”, all the criteria had to be met.  The violation must meet each of these criteria:

  • not the result of the purposeful, knowing, reckless or criminally negligent conduct;
  • pose minimal risk to the public health, safety and natural resources;
  • not materially or substantially undermine or impair the goals of the regulatory program;
  • has existed for less than 12 months prior to the date of discovery by the department or local government agency;
  • The person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for a violation of the same requirement of the same permit within the preceding 12-month period; and
  •  The activity or condition constituting the violation is capable of being corrected and compliance achieved within the period of time prescribed by the department

Instead, the Burzichelli bill would allow ANY SINGLE criteria to quality as a minor violation, including voluntary disclosures (see section 5.b.):

 A violation shall be designated by the department as a minor violation if any of the categories described in paragraph (1), (2), or (3) of this subsection is applicable to the violation :

Second, the bill would create a vague and extremely broad new category of “minor violation”, i.e. “technical errors” or “omissions”.

This would cripple DEP’s ability to enforce environmental laws and regulations and invite widespread abuse.


  • if the soil sample from the lab says that toxic lead is at 900 parts per million (requiring cleanup) and the company falsely reports 90 ppm (no cleanup required), then that fraud could be considered minor; or
  • The air monitoring report submitted to DEP says emissions are at 50 ppm, but the actual monitoring data is 50,000 ppm, that fraud also could be considered minor; or
  • If a permit condition requires wetlands delineation or reporting or restrictions on habitat, but that information is omitted in compliance monitoring reports to DEP, then that egregious violation could be considered minor.

The potential scenarios to invoke the “technical error” or “omission” defense are infinite. 

I trust you can see the abuses that would flow from this bill.

And I haven’t even mentioned the negative implications of the “Technical manual” provisions of the bill.

Let’s hope no Senate version is introduced and that this bill is quietly killed -or people wake up and mount an opposition.

Here is the actual language from the bill (underlines and/or  boldface text is new)

2.    Section 5 of P.L.1995, c.296 (C.13:1D-129) is amended to read as follows:

5.    a.  The department shall promulgate rules and regulations designating specific types or categories of violations within each regulatory and enforcement program of each environmental law as minor violations and non-minor violations.  In designating minor violations, the department shall utilize the criteria set forth in this section.  All types or categories of violations not designated as minor violations shall be designated as non-minor violations.

b.    A violation shall be designated by the department as a minor violation if any of the categories described in paragraph (1), (2), or (3) of this subsection is applicable to the violation :

(1)   (a)  The violation is not the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation;

(b)   The violation is based on an administrative, technical, clerical, or other non-substantive error or omission in a notice, report, manifest, or document; and

(c)   The violation is capable of being corrected and compliance achieved within 45 days; or

(2)   (a)  The violation is not the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation;

(b)   The violation poses [minimal] no risk to the public health, safety and natural resources;

[(3)] (c)      The violation does not materially [and] or substantially undermine or impair the goals of the regulatory program;

[(4)] (d)     The activity or condition constituting the violation has existed for less than 12 months prior to the date of discovery by the department or local government agency;

[(5)  (a)] (e)  (i)  The person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for a violation of the same requirement of the same permit within the preceding 12-month period;

[(b)]  (ii)     in the case of a violation that does not involve a permit, the person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for the same or a substantially similar violation at the same facility within the preceding 12-month period;

[(c)]  (iii)  in the case of a violation of the “Coastal Area Facility Review Act,” P.L.1973, c.185 (C.13:19-1 et seq.); the “Freshwater Wetlands Protection Act,” P.L.1987, c.156 (C.13:9B-1 et seq.); “The Wetlands Act of 1970,” P.L.1970, c.272 (C.13:9A-1 et seq.); R.S.12:5-1 et seq.; the “Flood Hazard Area Control Act,”P.L.1962, c.19 (C.58:16A-50 et seq.) or any rule or regulation promulgated thereunder, or permit issued pursuant thereto, the person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for the same or a substantially similar violation at the same site or any other site within the preceding 12-month period; or

[(d)] (iv)  in the case of any violation, the person responsible for the violation has not been identified by the department or a local government agency as responsible for the same or substantially similar violations at any time that reasonably indicate a pattern of illegal conduct and not isolated incidents on the part of the person responsible; and

[(6)]  (f)  The activity or condition constituting the violation is capable of being corrected and compliance achieved within the period of time prescribed by the department pursuant to subsection b. of section 3 of P.L.1995, c.296 (C.13:1D-127) ; or

(3)   The violation has not caused any actual harm to the public health, safety, or environment .

c.     [Any] Notwithstanding the provisions of any law, rule, or regulation to the contrary, any violation subject to the mandatory assessment of civil administrative penalties pursuant to subsection b., c., or d. of section 6 of P.L.1990, c.28 (C.58:10A-10.1) shall not be designated as a minor violation pursuant to this act.


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Trenton Today

May 24th, 2012 No comments

I went down to Trenton today to listen to the debates and votes on environmental bills on the Assembly Board list.

While the priority focus was on the Legislative veto of the DEP waiver rule (ACR 37 [1R]) and the RGGI restoration bill (A1998), I was particularly interested in really bad bills that have flown under the media and environmental lobbyist group radar and curiously generated no visible opposition:

  • A2584 – which I wrote about yesterday, is a bill that would expand loopholes in the Whitman Administration’s enforcement “Grace Period” program and make it more difficult for DEP to adopt “Technical manuals” and thereby regulate industry;
  •  A1534 – an innocent sounding bill that amounts to a chemical industry sponsored attack on the Pollution Prevention Act (does the sponsors Assemblyman Burzichelli think there are not enough DEP Reports here?);
  • A1527 changes to the Watershed Propertry Review Board that amount to threats to the current development moratorium on watershed lands (the Senate version is co-sponsored by Norcross and Kryillos- now what do you think that’s about?).

So, here’s the quick rundown.


Waiver Rule Veto

As expected, with no debate, the Waiver rule veto passed largely on partisan lines by a vote of  47 – 31. This is a significant victory that now shifts the debate to the Senate.

If the Senate passes the identical Resolution, the DEP Commissioner will have 30 days to revoke or amend the Waiver rule. If he fails to do so, and if both Houses then pass another Resolution, the waiver rule is repealed.

The waiver rule scheduled to go into effect on August 1, so it is important that the Senate vote ASAP, because the Legislature adjourns for the summer after the budget is done, July 1.

RGGI Restoration

Assemblyman McKeon (D-Essex) introduced and spoke in support of the bill (substituted by S1322).

At the outset of his remarks, he misspoke by claiming that greenhouse gas emissions “destroy the ozone layer”, which then causes global warming (I thought only Christie Whitman was confused about that, a gaffe reported by the NY Times). Wrong on both counts. (Holy shit – Mulshine called him out on it too!)

He then again misspoke  by claiming that RGGI fees are paid by emissions sources who emit in excess of the “cap”.

Ironically, McKeon cited the work of world renown NOAA scientist Dr. James Hansen, apparently unaware that Hansen strongly OPPOSES cap and trade programs like RGGI.

McKeon cited jobs, alleged emissions reductions, and enhanced economic activity as reasons to support RGGI. He criticized Governor Christie’s raid on $65 million in RGGI funds.

Assemblyman Carroll (R-Morris) rose in oppostion.

He too was an embarrassment, but far more so than McKeon.

Carroll echoed the paranoid delusional talking points of Steven Lonegan of Americans for Prosperity, the Koch Brothers funded front group.

The bill passed, again largely on partisan lines by a vote of 45 – 33.

It now has passed both houses and goes to the Governor, where it is certain to be vetoed (again). At this point, supporters lack the votes to over-ride the Governor’s veto. So, this was mainly show.

Pollution Prevention

With no debate, the Pollution Prevention Act Attack bill passed by a vote of 72-4-2.

While there is no companion in the Senate, passage of the bill would set the stage for rollback of the Act.

Shamefully, what was once the cornerstone of the Florio Administration’s environmental policy and a national groundbreaking model bill to promote toxics use reduction and force changes in the manufacturing practices of the chemical industry, is now a dead letter, with absolutely no defenders.

Democrats can carry the chemical industry’s water, seemingly with impunity.

Where the hell are the environmentalists?

Grace Period/Technical manuals

Without debate, the bill passed by an astonishing vote of 77-1, with McKeon the lone opponent.

Ironically, this actually EXPANDED the scope of a Whitman Administration “voluntary compliance” “regulatory flexibility” “open for business” law called “Grace Period”.

The vote came at the end of a long session.

While the environmental lobbyists were long gone, the GodFather of NJ toxics Hal Bozarth and his chemical gang remained in the gallery.

This lopsided vote with no debate just reveals that Legislators, environmentalists, and the media are totally clueless in terms of how environmental programs are actually implemented and enforced.

Watershed Property Review Board – Moratorium

With no debate, the bill passed by another lopsided vote of 71-4-2.

Tomorrow’s headlines – if there even are any stories – will likely be “Environmentalists praise Democrats for protecting the environment” or some such bullshit.

I think I’ll sign off now and leave it at that.

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Legislative Veto of DEP Waiver Rule May Be More About Politics Than Policy

May 23rd, 2012 3 comments

Enforcement Loophole & Technical Manual Bill Is An Indicator

I was out of town and missed Monday’s Assembly hearings on the proposed Legislative veto of the DEP waiver rule, but did testify in support of it last Thursday before the Senate.

In thinking about this, a key question that came to mind is: why are the Democrats supporting the Legislative veto?

Is their support essentially institutional, based on Governor Christie’s executive over-reach and separation of powers? (this was Chairman Senator Smith’s position). This is a constitutional legal argument that is not based on the policy objectives of the DEP waiver rule.

Or is their support grounded in policy: does the legislative finding that the DEP waiver rule is “inconsistent with legislative intent” reflect a pro-environmental rejection of the Christie Administration’s pro-business and anti-regulatory policy agenda?

This would involve a broad challenge to the Governor’s “regulatory relief” policies in Executive Order #2 and repudiate DEP Commisisoner Martin’s radical change of DEP mission to include  “promotion of  economic development”. This seemed to be Senator Greenstein’s position.

This also seems to be what environmental groups are hoping and may be misreading.

Or is it – as stated by Republican Senator Beck – merely a cynical partisan political attack on Governor Christie? (the Senate Resolution is sponsored by Barbara Buono, a likely Democratic Gubernatorial candidate).

Let me suggest one indicator to watch.

While all the attention of environmental groups and the media are fixed on tomorrow’s Assembly vote on the Resolution to legislatively veto the DEP waiver rule (ACR 37/SCR 59), a technical bill (A2584) that would provide enforcement loopholes and make it more difficult for DEP to regulate business also is up.

Environmental and labor groups have made the killing the DEP waiver rule a high priority, attacking it in the Courts, legislature, and media. [Full disclosure: NJ PEER is a plaintiff in the lawsuit.]

The Democrats have responded and are about to pass concurrent resolutions that would legislatively veto the DEP rule. I support all those efforts.

But curiously, the technical manual/ loophole bill is sponsored by many of the same Democrats that probably will vote in favor of the Waiver veto Resolution, including Assembly Regulatory Oversight Committee Chairman Burzichelli (D- Oil & Chemicals).

Burzichelli also a member of the Christie Red Tape Commission and has served as the legislative point man in advancing the Christie Administration’s attack on DEP and “job killing” environmental regulations.

At the outset of the new legislative session, Burzichelli’s Committee was originally assigned the Waiver veto Resolution. Upon re-introduction, it was assigned to his Committee on February 21, 2012.

But as a sign that Burzichelli would not support it, the Resolution was transferred out on May 21 and referred to the Assembly  Environment Committee and released on the same day.

But Burzichelli seems to have extracted a political concession from Democratic leadership along the way.

Another one of his pro-business anti-regulatory bills is also up on Thursday.

And as I predicted, the legislation is flying below the radar (see: More Technical Manuals On the Way?):

While this set of issues certainly are not sexy and amenable to a sound bite, they define both the rules and equipment for playing the game – literally the stuff of how environmental protection gets done; or the how and why of DEP permitted pollution increases and destruction of natural resources.

Like a hockey player’s skates, or a golfer’s clubs, or a surgeon’s scalpel, or the primary producers in the ecosystem – essential elements that are ignored at peril (with raises a question for another post: why do these “in the weeds” issues get virtually no attention by environmentalists and media?)

In fact, I’m afraid that my own post on Technical Manuals directly led to this legislation. Let me explain.

The bill in question, A2584 [1R], would do 2 things:

  • require the Department of Environmental Protection (DEP) to authorize the correction of minor technical and administrative violations of DEP permitting rules. The bill would, in particular, establish a new class of minor DEP violations; and
  • amend the existing law in this area to provide that the department must comply with the provisions of the “Administrative Procedure Act” in adopting a technical manual that outlines permit application and review procedures.

The first objective opens the door to a whole new vague category of enforcement loopholes. For example, false or erroneous reporting of water pollution discharge or air emissions data now be “minor” and not subject to enforcement penalties.

[Note: the bill is an amendment of the Whitman Administration’s enforcement “Grace Period” law – reminder h/t JT. See PEER ENVIRONMENTAL AGENCY EXTENDS “GRACE PERIODS” TO POLLUTERS — Minor Violations Forgiven in Revival of Whitman Penalty Moratorium]

This is very bad policy.

The second objective – requiring that Technical Manuals be promulgated in accordance with rule making procedures creates new “red tape” and defeats the entire purpose of the original law creating Technical manuals.

Technical Manuals were created by the Legislature to provide a streamlined procedure for DEP to give the regulated community detailed guidance on how to comply with environmental regulations.

For almost 20 years, these manual have served an important purpose. As I previously wrote, here is DEP explanation of the objectives:

This manual has been produced by the Department of Environmental Protection (DEP) to make the permit process less complicated and time-consuming for you. This manual is one of a series of technical manuals produced by DEP under the requirements of the Environmental Management Accountability Plan (P. L. 1991, Chapter 422) with the goal of making the permit application process more consistent and predictable. In each technical manual, you will find summaries and explanations of policies that may not be fully described or explained in environmental laws or regulations. In addition, the manuals contain guidance on how the Department defines other standards, such as “state- of-the-art” control technologies or “best management practices”.

Unless otherwise required by federal or state law, the policies and procedures contained in a technical manual on the date an application is filed will be binding on both the DEP and the applicant.

These manuals become even more important now that the Legislature essentially banned DEP Guidance documents. Here is what’s at stake:

This would please the polluters and developers and is administratively the easiest way out.

But it would create bureaucratic and legal chaos.

It would provide far more control to the regulated community (polluters and developers) as they alone decided how to interpret and comply with regulations. Such an “anything goes” “you decide” approach to technical requirements would undermine DEP’s efforts to promote compliance and frustrate enforcement of environmental laws. Basically, there would be nothing to enforce, as the permittees basically write their own permits.

[note: during Burizichelli’s hearing on that guidance ban bill, my testimony mentioned the impact on Technical Manuals. Burzichelli’s questions to me made it clear that he knew nothing about them. The bill was amended to address my concerns.]

The only reason for this legislation to emerge now is to throw up roadblocks to DEP.

Passage of this bill would weakens enforcement and implementation of environmental laws – across the board . The bill is another bad idea geared by the “job killing” Red Tape mentality.

Let’s hope that this bill is merely a face saving political bone thrown to Burzichelli. That could be the case, because there is no Senate version so the bill could be going nowhere.

And let’s hope it is NOT an indicator that Senator Beck might be right.

We’ll be watching and keep you posted.

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